Fogarty v. Northern P. Ry. Co.
| Decision Date | 22 July 1913 |
| Citation | 133 P. 609,74 Wash. 397 |
| Court | Washington Supreme Court |
| Parties | FOGARTY v. NORTHERN PAC. RY. CO. |
Department 2. Appeal from Superior Court, Yakima County; Thos. E. Grady Judge.
Action by John B. Fogarty, as administrator of the estate of Frank Edward Myers, deceased, against the Northern Pacific Railway Company, a corporation. From a judgment for plaintiff defendant appeals. Reversed and remanded.
Englehart & Rigg, of North Yakima, for appellant.
Wm. M Thompson and Henry J. Snively, both of North Yakima, for respondent.
This action was brought under the federal Employer's Liability Act on behalf of the widow and minor child to recover damages for the death of Frank E. Myers caused by the derailment of an engine upon which the deceased was working as fireman. The negligence charged was in failing to cause a switch to be properly set and closed, and maintaining it in an open and defective condition.
Several defenses were pleaded, none of which need be referred to except two. The first of these is contributory negligence. All that need be said in regard to this charge is that, under section 3 of the act, contributory negligence is not a bar to recovery, but the damages are to be diminished by the jury in proportion to the amount of negligence attributable to the employé. It will thus be seen that in cases under this act it becomes a question of fact for a jury to apportion the negligence of the employer and the employé, and to render a verdict in such an amount as they shall fairly determine to represent the true apportionment. The cases must therefore be rare in which the court would be justified in saying, as a matter of law, that the contributory negligence of the employé so far exceeds the negligence of the employer that the jury would not be justified in returning a verdict in any amount. Whether or not such a rule should be adopted need not here be discussed, as the facts upon which the charge of contributory negligence is here based are so plainly for the determination of the jury that it would be a judicial usurpation of power to interfere with the verdict.
The next defense to be noted is that, long prior to the death of deceased, the deceased and his wife had abandoned each other, and had not lived together as husband and wife. It was also charged in this connection that the deceased had also abandoned the minor child, who is now about seven years of age, and had not contributed to the support of this child for many years, and that neither the widow nor the child were to any extent dependent upon the deceased for support. The jury returned a verdict assessing the damages in a lump sum at $20,000, which the lower court reduced to $12,500, and the company appeals.
In submitting this defense to the jury we think the lower court committed error. The jury were instructed that in cases of this character the law has no fixed standard by which to ascertain and fix the damages, and that the question for them to determine was, What loss did the wife and child suffer by reason of the death of the deceased? The jury were further told that the damages should be assessed in a single sum for the benefit of the surviving widow and child. Whatever may be the rule as to the correctness of these instructions in an ordinary action for wrongful death under the statutes of this state, they were not correct as applied to a cause of action...
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